Shelley

*916 OPINION

This matter has been reheard by the United States Court of Appeals for the Ninth Circuit, sitting en banc, upon the vote of a majority of the non-recused active judges pursuant to 28 U.S.C. § 46 (c) and Federal Rule of Appellate Procedure 35. We thank all the parties and their counsel, as well as the amici, for the prompt and professional presentations to this court on an expedited basis.

BACKGROUND

The following summary is largely adopted from the district court’s order denying a preliminary injunction.

On October 7, 2003, California voters are scheduled to decide whether Governor Gray Davis should be recalled and, if so, who should replace him. Also on the ballot are two statewide initiatives: Proposition 53, a proposed constitutional amendment sponsored by the state legislature that would require a portion of the state’s budget be set aside for infrastructure spending; and, Proposition 54, a measure that would ban government agencies from collecting certain racial information. The state was to begin mailing absentee ballots 29 days before the election. See Cal. Elec. Code § 3001 . Absentee voters must return the ballots prior to the close of the polls on…